A tale of two great arguments

Posted Tue, March 27th, 2012 5:40 pm by Tom Goldstein

Having now had a chance to take a breath from thinking about the substance, I wanted to step back and comment on the advocates. I really only heard a couple of minutes of Michael Carvin’s argument, but I was there for almost the entirety of Don Verrilli’s and Paul Clement’s. Paul told me that Don was terrific, and I’m sure Don would say the reverse. I certainly think that both were tremendous. We’ll have the consolidated version of the argument tape up soon, but I thought I’d give a couple of examples now.

General Verrilli had one stumble out of the gate as he had to get a drink of water and then restart, but immediately got his footing. I thought all of his answers were clear and straight to the point. The most impressive thing about it is that – even if the government wins – it had the much harder case to argue. The plaintiffs have very clear, bumper sticker points. The government has to answer a lot of very difficult hypotheticals. The Solicitor General has the especially hard job of defending not just this statute but Congress’s prerogative to enact almost any law in the future. And finally the Court’s more conservative Justices are on the whole more effective questioners than the left.

But none of those fazed Verrilli, who brought to the argument his status as really one of the small handful of lawyers the Justices genuinely trust after decades of hearing him argue. For example, Verrilli stood his ground against the plaintiff’s efforts to recharacterize the mandate. Responding to Justice Kennedy, he immediately disavowed any power to “create commerce,” explaining that the government’s position was that the financing of health care “is economic activity with substantial effects on interstate commerce.” Tr. 5. In a point that the Chief Justice later cited, he focused on the fact that “virtually everybody” is “either in that market or will be in that market and the distinguishing feature is that they cannot – people cannot generally control when they enter that market or what they need when they enter that market.” Id.

Under sustained fire from the Court’s conservatives, Verrilli also kept at the theme that the plaintiffs had conceded the government could impose a mandate at the time an individual receives health care, so that the mandate merely raises a question of timing. And Verrilli carefully planted the seeds several times – including in his rebuttal – for one or more Justices to rule in the government’s favor under the taxing power. It was a tremendous argument.

As good as Don Verrilli was, Paul Clement was even better. It was the best argument I’ve ever heard. Paul had a bunch of natural advantages that I mention above. But even without that, he was extraordinary. His ability to parry difficult questions and press forward the heart of his argument was astonishing.

Clement succinctly made the point that the mandate is not just about timing because it applies to many people each year “who don’t want to purchase health insurance and also have no plans of using health care services in the near term.” Tr. 56. When Justice Kennedy – obviously a critical vote – articulated the government’s argument that individuals who do not purchase health care have a significant effect on the market as a result, Clement effectively countered (in a point that Kennedy later repeated) that one of the things Congress sought to do “was to force individuals into the insurance market to subsidize those that are already in it to lower the rates.” Tr. 57. And throughout, Clement articulately pressed the government’s weakest point – its inability to identify a clear limiting principle on its reading of the Commerce Clause.

I commend the entire argument to anyone who is interested in great oral advocacy.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.